KOCHI: Uncoupling the institution of marriage from sacred or
religious connotations conveniently used to deny women their due, the Kerala high
court has ruled that Muslim marriage is primarily a civil contract to
legalize sexual intercourse. In the same vein, the court held that denying a
woman her conjugal
rights for an extended period amounts to "cruelty''.
The ruling by a division bench comprising justices Pius C Kuriakose and PD
Rajan was in response to an appeal by Sanjan S of Alappuzha against a family
court's decision to grant divorce to his wife on the ground that she was denied
sex by him for over three years. The profound implications of the March 21st
ruling are only beginning to sink into public
consciousness.
The judgment authored by Justice Rajan says, "The concept of 'marriage'
among Muslims from the very beginning itself (is) regarded as a contract.
Muslim marriage has been defined as a civil contract for the purpose of
legalizing sexual
intercourse and procreation of children. It is not a sacrament but a
contract, though solemnized generally with the recitation of certain verses
from the Quran. Muslim law does not prescribe any religious service essential
for solemnization. Justice Krishna Iyer in 'Islamic Law in Modern India'
considered the concept of Muslim marriage and stated that "in its legal
connotation, Muslim marriage is essentially a contract, though marriage as a
social institution is regarded solemn all over the civilized world, including
the Muslims."
Sanjan got married on May 16, 1999 according to Muslim religious rites and his
wife delivered a child in August 2004. After February 2004, he avoided sexual
contact with his wife, despite her insistence, for more than three years. In
2006 his wife left Sanjan's home and filed for divorce in 2007 in the family court.
Upholding the family court's decision granting divorce, the high court held,
"We are of the opinion that if husband refuses to (have) sex with his
wife, when she demands for the same, (it) is a ground for "cruelty".
As a wife, she is expecting a healthy
sexual relationship with her husband for the persistence of happy and
harmonious married life."
Sanjan's counsel at the high court, K Ramakumar, contended that the alleged
cruelty of denying conjugal relations is not pleaded and proved in this case.
There is no allegation that the matrimonial relationship was broken
irretrievably, he argued. Advocate PK Ibrahim, who appeared for the wife,
opposed this, arguing that the totality of the pleading and evidence show that
the marriage was irretrievably broken and that the emotional bond between the
couple is extinct.
While deciding the case, the high court cited section 2 of Dissolution
of Muslim Marriage Act, 1939, which states various grounds for divorce.
According to section 2, divorce can be granted if "the husband has failed
to perform, without reasonable cause, his marital obligations for a period of
three years."

'Divorce invalid if talaq is pronounced in anger'

Agencies

Posted: Oct 28, 2007 at 0000 hrs IST

New Delhi, October 28: Suggesting a rethink on the triple talaq way of terminating Muslim marriages, the Delhi High Court has ruled that a couple's divorce is invalid if the husband pronounces talaq in anger or fails to communicate it to his wife, leaving no scope for reconciliation.

"It (triple talaq) is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenets of Islam or the Quran or any ruling of the Prophet Muhammad," said Justice B D Ahmed.

Justifying his suggestion on rooting out triple talaq system, Justice Ahmed said the "harsh abruptness" of triple talaq has brought about extreme misery to women and even the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation.

The court's observations on triple talaq were made while disagreeing with a woman's plea that her husband's physical relationship with her after pronouncing triple talaq, in her absence, amounted to rape.

Quashing rape charge against, Masroor Ahmed, the court said, "First of all, it (talaq) was given in extreme anger, secondly it was never communicated to the complainant (wife).

Therefore the rape is not made out," the Court said.

Masroor's wife, Aisha, alleged that her husband had physical relation with her without disclosing the fact that he had pronounced talaq, when she was away to her parental home.

The court held that since the couples divorce was invalid, the husband's physical relationship with his legally wedded wife, subsequent to his pronouncement of a talaq, would not amount to rape.

Muslim body lauds SC judgement on 'triple talaq'

Sunday, April 23, 2006

New
Delhi, Apr 23: Endorsing the Supreme Court's recent verdict that
declared as null and void the 'triple talaq' in a state of drunkenness, a
prominent Muslim body has said it should not cause furore among the
minority community.

The apex court's judgement ''is closer to the Islamic
principles than the local clerics' fatwa on the issue,'' according to
Milli Parliament President Rashid Shaz.

Dr Shaz, however, observed that the argument of the judges
that ''this is a secular country and all communities -- Hindus or
Muslims -- should behave in a civilised manner'', may lead to a
constitutional debate.

He said the Constitution guarantees religious communities freedom to live according to their own religious norms.

''Such a line of argument can only create apperehension
among Muslims who rightly believe secularism only snatches from them
whatever left and does not empower them or come to their rescue in
moments of crisis....'' It would have much better if the Sher Mohammad
vs Nazma Biwi case had been decided within the ambits of the Muslim
Personal Law.

''Then this judgement would have been more effective and
emotionally acceptable to India's 250 million Muslims.'' He said the
Quran does not mention triple talaq and there are some schools of
thought within the Muslim community which oppose this, though it is not
highlighted by the media.

''The time has come the Muslim community moves to the
Quranic principles of justice and pays no heed to such worn-out,
non-Quranian fatwas which some village Mullahs, in the name of religion,
want to impose on us.'' Dr Shaz, editor of a tri-lingual e-magazine
futureislam.com, said it was unfortunate that despite the presence of
the Book of God among the community, the Muslim men continued to violate
women's rights so much so that the court had to intervene.

''Milli Parliament appeals to the Muslim community to take
this judgement as an exercise in checking the misuse of men's rights and
not as an intervention in their personal lives.'' he said, adding that
what was more important was to uphold justice.

''And this judgement due to its close proximity to the
Quran, holds promise of ensuring justice more than the edicts of ulema
put together,'' Dr Shah said.

On Friday, the apex court had taken a stern view of the
threats held out by clerics to a Muslim couple in a village of Orissa,
who have decided to live together after the husband pronounced talaq
thrice in a drunken state in 2004.

Ser Mohammed, a father of four minor children, had uttered
''talaq, talaq, talaq'' to his wife Nazma Bibi in public in a state of
drunkenness.

A bench, headed by Justice Ruma Pal, said, ''No one force
the couple to live separately. This is a secular country. We will not
tolerate this...Every community has to behave in a civilised way...''.

The
Kerala high court has held that a Muslim woman's claim of "inequitable
treatment" in a polygamous marriage should be accepted by courts as
ground for divorce.

Courts
must accept a Muslim wife's assertion in a polygamous marriage that she
had been treated "inequitably" by her husband in claims for divorce
under sect 2(vii)(f) (that he did not treat her equitably with other
wives in accordance with the injunction of the Quran) of the Dissolution
of Muslim Marriages Act, 1939, the court said.

"It
was the assertion of woman that matters in the case if she felt
inequality from the husband. She is the best judge to decide whether her
husband was showing discrimination towards her or no," a division bench
comprising justices R Basant and M C Hari Rani ruled yesterday.

When
it was admitted or proved that there had been a second marriage and
when the wife asserted that she had been treated inequitably and that
she would like to walk out of such a marriage, no court could fetter her
right to quit the marriage, the bench held.

The
observation was made by the bench while upholding a lower court's order
granting decree of divorce to Khairunnissa on a divorce petition filed
by her and dismissing an appeal by her husband Abdulrehiman of
Perinthalmanna challenging it.

The
court pointed out that a Muslim husband had the right to walk out of a
marriage unilaterally even in a monogamous marriage. "At least when
faced with the ignominy of polygamy, the wife must on her assertions be
able to secure an order through court to quit such a marriage. Her
assertions need not be tested on other touchstones," the court said.

Though Sect 2 vii (f) of the Act does not recognise a
polygamous marriage by itself as ground for divorce, but read
reasonably, "the provision concedes to the wife the right to walk out of
the marriage if she is satisfied that she has not been treated
equitably in such marriage," the court said.

The
Quran mandates that the woman must be "dealt with fairly and justly"
and it declares that it will be impossible for a husband to treat his
wife fairly when there is "plurality of views". If she perceives the
treatment to be unjust and inequitable, her assertions would have to be
accepted totally, it held.

Adulrehiman and Khairunnissa got married in 1980. After three years, he married again.

Over
300 Muslim scholars have unanimously empowered Muslim women to annul
marriage, in case of a serious breach of agreement or if a wife is
unwilling to live with her husband.

The
ruling was adopted last week, at an international Islamic jurisprudence
seminar organised by Islamic Fiqh Academy (India) from at Mhow in
Madhya Pradesh.

Delving
upon the Islamic concept of Shiqaaq or disagreement leading to
unwillingness to live as husband and wife, the scholars ruled that
mediation and reconciliation should be resorted to before dissolution of
marriage on this ground.

The
ruling said, "It is the duty of the relatives and guardians of the
couple to attempt reconciliation and try to keep the couple within the
limits set by Allah."

The
ruling says, " If Shiqaaq (bitterness or acrimony) shiqaaq arises
between a couple and wife is completely unwilling to live with her
husband, then utmost effort should be made by the judge to reconcile. In
case of non-reconciliation, the marriage should be dissolved."

Mumbai High Court's landmark judgement on talaqBy Asghar Ali Engineer

Recently
the Aurangabad Bench of Bombay High Court gave an important judgement
in Muslim divorce case. It is a landmark judgement, which will
benefit many suffering Muslim women who are arbitrarily divorced. We
would like to throw light on this judgement. Before we throw light on
the judgement we would like to say something about the personal law as
applicable to Muslims in India.

There are great deal of misconceptions about
Muslim personal law both among Muslims and non-Muslims. Muslims think
it is beyond the scope of any change as it is divine and perfect in
every respect. The non-Muslims think, on the other hand, it is very
rigid and unfair to women and stands in need of improvement. Some
rationalists and ironically communalists of the Sangh Parivar want to
abolish personal laws and implement Common Civil Code. The whole
matter is stuck between these polarities and one can hardly hope either
from the Muslim Personal Law Board or country's legislature to effect
some reasonable changes.

For Muslims their personal law has also become a
matter of their religious identity. They do not want any interference
from government of the country or by legislature in their personal
law as it is deemed undue interference in their religious matters.
They argue that freedom of religion has been guaranteed by Art. 25 of
the Constitution and effecting any changes amount to curtailing this
freedom. Even the Supreme Court judges are not unanimous on the
question whether enforcing Uniform Civil Code as per Article 44 of the
Constitution would violate the right under Article 25 or not.

The Muslims feel that Articles 25 and 44
contradict each other and there is no question of enforcing Article 44
which is any way only recommendatory and not obligatory. Thus
minorities in general and Muslims in particular refuse to allow any
change in their personal laws. On account of this it is women who
suffer. Another complication factor is the aggressive attacks by the
Sangh Parivar on Muslims from time to time. The communal violence on the
scale on which it was perpetrated in Gujarat recently makes
minorities extremely insecure and naturally so. In such conditions
they are bound to resist any attack on their religious identity.

But one can hardly ignore the plight of women
either. Many Muslim men are unjust in their behaviour towards women.
They, like men of other religious communities, treat women as mere
chattels. Islam had provided women not only with dignity but also gave
them concrete legal rights in no way inferior to men. As far as women
were concerned Islam was nothing short of a social revolution for
them.

However, society drags down religion to its own
level. The society was not prepared to accord high or equal status to
women. It managed, through various means, to push women to lower
status on the social ladder. Pre-Islamic customs and traditions found
place in Islamic Shari`ah through what can be called analogical
reasoning (qiyas) and ijma` (i.e. consensus)

Thus Muslims must understand that Shari`ah laws
have incorporated human reasoning as much as divine injunctions and
human reasoning is greatly influenced by ones own social and cultural
ethos. The medieval social and cultural ethos prevailed over Qur'anic
injunctions and Qur'anic ethos. The status of Muslim women, which was
elevated came hurtling down. Is it not for Muslims to seriously
reflect on this and bring about desired changes in Muslim personal law
as applicable in India?

It is also important to note that what is known
as Muslim personal law was enacted by the British government in the
nineteenth century and was based, apart from Shari`ah law, on British
procedural law and also on various preceding judgements. It was not
even properly codified. The judgements of those days delivered by the
British courts were influenced by social ethos of Victorian period,
which moulded the opinion of the British judges and also by prevailing
and proven customs and traditions.

Today women's rights have assumed great
importance and have to be taken into account while deciding the cases
pertaining to marriage, divorce, maintenance and property. Still our
social traditions are such as to deny women rights in these respects.
And as far as Muslim personal law is concerned, in the absence of any
codification it is judge's opinion, which takes precedence. Also, one
has to remember that whatever the personal law judge is bound to be
influenced by the social movements for women's rights. No judge can
ignore the rights of women in today's social ecology.

The Supreme Court judgement in the Shah Bano's
case in 1985 also has to be seen in this light and the subsequent law
(Muslim Women's Act, 1986) upturning the Supreme Court judgement did
not influence judges minds and they continue to give judgements as
before even under the new law. Subjective human role is very important
and this role is determined by prevailing social ethos. That is why
most of the high courts are giving progressive judgements in favour of
Muslim women.

The latest judgement was delivered by Aurangabad
Bench of Bombay High Court in respect of divorce of a Muslim woman.
This judgement will greatly benefit Muslim women in India. The system
of triple divorce is widely prevalent among Sunni Hanafi and Shafi'i`i
Muslims except of course among Ahl-i-Hadith. But Ahl-i-Hadith are in
small minority any way.

Fahimbi from Latur was married to Dagdu Chote
and three children were born from this wedlock. Fahimbi filed a case
under Section 125 of Cr.P.C. for maintenance for herself and for her
three children. Dagdu Chote married another woman Kamrunbee and from
her also children were born. He neglected the first wife Fahimbi and
her children and did not pay any maintenance.

On receipt of summons from the Court Dagdu Chote
appeared before the court and filed a reply saying he does not owe
any maintenance as he divorced her (Fahimbi) on 24th February 1995. He
also claimed that he divorced his wife in the presence of a Qazi and
two witnesses one of whom was Muslim and another one Hindu. He,
therefore, prayed before the court that application for maintenance
under Section 125 of Cr.P.C. by Fahimbi be dismissed. This petition was
dismissed by the 2nd joint judicial magistrate First Class at Latur on
21st November 1998. And the maintenance application filed by Fahimbi
and her three children was allowed. The Magistrate maintained that the
fact of talaq must be proved, as it cannot be accepted merely on
grounds of pleading.

The respondent No. I i.e. Fahimbi maintained
that she was unaware that talaq has been given to her as it was not
communicated to her by registered post which was returned. However, a
presumption was made by Dagdu that pronouncement of talaq was
communicated to the wife on 30th November 1992. The reason stated in
the talaqnama executed was that the wife had filed a case for
maintenance and that she insulted the husband and mother-in-law as
well as there were differences of opinion, as a result of which they
cannot run a family.

The husband had pleaded orally that he had
divorced his wife as per Mohammadan Law by pronouncing talaq in
presence of two witnesses though there he gave no reasons. The learned
Judges maintained that as per the Holy Qur'an there should be 1) it
should be for reasonable cause, 2) it should be preceded by an attempt
at reconciliation and c) the talaq be effected if the attempt for
reconciliation failed.

This view was taken by the Single Judge and the
learned judge had agreed with the Gauhati High Court in the case of
Zeenath Fatima Rashid and the Calcutta High Court in the case of
Chandbi.

The Aurangabad Bench formulated the issues as
follows: 1) whether a Muslim husband has a right to divorce his wife
without any reason and merely at his whim; 2) whether the Muslim law
mandates pre-divorce reconciliation and whether any pleading by
husband in the court that he divorced his wife which would amount to
divorce according to Muslim law and whether the husband has to prove
in the court that talaq was duly effected.

General belief is that a Muslim husband is free
to divorce his wife any time at his will and without assigning any
reason but the teachings of Holy Qur'an and other sources of Islamic
law hold marriage as contract but once marriage takes place it becomes
an institution for life long and this contract is holy and sacred
(the Qur'an describes it as mithaq-e-ghaliz i.e. strong covenant).

The talaq must be preceded by an attempt at
reconciliation. The Muslim law also recognises distinction between
effective or proper talaq and ineffective or improper talaq. Thus it
is necessary, the Aurangabad Bench of Bombay High Court concluded that
a talaq, even if it is oral, must be proved before the Court, if it
is contested by wife by leading evidence.

The above judgement will be quite beneficial for
women and is quite in keeping with the Islamic law, particularly in
keeping with the Qur'anic pronouncements on talaq. The Qur'an lays
emphasis on justice, not on arbitrariness. Anyone who ignores the
spirit of justice violates Qur'anic spirit. The `Ulama and members of
Muslim personal law board must not allow any Qur'anic injunction or
spirit to be violated. The Qur'an has done great service to the cause
of women and empowered them through their clearly defined legal
rights. Time has come that this Qur'anic spirit be upheld and justice
be done to suffering Muslim women.

One must also congratulate the learned judges of
the Aurangabad Bench to have discussed the matter in detail in their
judgement in the light of the Qur'an and its injunction and not merely
on grounds of secular and constitutional laws. This is indeed a
healthy change.